The State of Western Australia v Edwards [No 4]

[2019] WASC 418

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- EDWARDS [No 4] [2019] WASC 418

CORAM:   HALL J

HEARD:   21 & 22 OCTOBER 2019

DELIVERED          :   15 NOVEMBER 2019

FILE NO/S:   INS 164 of 2018

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Prosecution

AND

BRADLEY ROBERT EDWARDS

Accused

Catchwords:

Criminal law - Evidence - Relevance of evidence as to the emotional state of the accused - Whether evidence of motive - Circumstantial evidence - Whether evidence capable of making it more probable that the accused committed the offences alleged

Legislation:

Evidence Act 1906 (WA) s 31A
Offenders Probation and Parole Act 1963 (WA) s 8, s 9, s 51
Sentencing Act 1995 (WA) s 22

Result:

Evidence to be admitted provisionally

Category:    B

Representation:

Counsel:

Prosecution	:	Ms C Barbagallo SC, Ms T Payne & Mr B Hollingsworth
Accused	:	Mr P Yovich SC & Ms G Cleary

Solicitors:

Prosecution	:	Director of Public Prosecutions (WA)
Accused	:	Mony De Kerloy

Case(s) referred to in decision(s):

De Gruchy v R (2002) 211 CLR 85

Harman v Secretary of State for the Home Department [1983] 1 AC 280; [1982] 1 All ER 532

Hearne v Street (2008) 235 CLR 125

Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311

Plomp v The Queen (1963) 110 CLR 234

R v Baden‑Clay (2016) 258 CLR 308

R v Heath [1991] 2 Qd R 182

R v Ireland (1970) 126 CLR 321

Rodway v The Queen (1990) 169 CLR 515

The State of Western Australia v Edwards [2019] WASC 87

The State of Western Australia v Edwards [No 2] [2019] WASC 282

The State of Western Australia v RGS [2009] WADC 94

United States v Benton (1981) 637 F 2d 1052

HALL J:

Summary

1. This ruling deals with objections to evidence that has been described as 'emotional upset evidence'.  Some of the evidence was referred to in a previous ruling.[1]  More such evidence has been identified in additional statements that have been disclosed to the defence since 30 July 2019.  I will describe the evidence in more detail later in these reasons.

   [1] See The State of Western Australia v Edwards [No 2] [2019] WASC 282.

2. The broad nature of the evidence is that it describes the emotional state of the accused between late 1994 and early 1997 and events in his life that, it is said, are likely to have caused him to be emotionally upset.  The defence submits that this evidence is irrelevant.  The State says that the evidence is relevant to motive.

3. The State contends that the evidence is capable of supporting an inference that, when experiencing emotional turmoil, the accused is motivated to attack women who are strangers to him.  The State says that there is evidence that the accused was in a state of emotional upset proximate to each of the events the subject of counts 6 ‑ 8.  This is said to make it more likely that the accused is the person who committed those offences.

4. Any assessment of the relevance of this evidence depends on considering it as a whole.  The potential significance of each individual piece of evidence is affected by other evidence which places it in context.  The relevance of the evidence also depends on there being proof of a connection between emotional upset and violence of the type alleged.  Proof of such a link would make it possible to draw an inference about how the accused is likely to have behaved at other times.  Essentially there are two stages to this enquiry as to relevance:  does the evidence establish a link of the type described and, if so, is there evidence of emotional upset at the time of the alleged offences of such a nature as would make it more likely that the accused would commit such an offence.

5. The evidence has changed or become more detailed as witnesses have been proofed.  Although it is necessary to take the evidence at its highest from the point of view of the prosecution for the purposes of ruling on its admissibility, there is a very real likelihood that the evidence at trial will vary significantly from that reflected in the statements.  Some of the evidence is also expressed in terms that may be objectionable as being speculation, hearsay or inadmissible opinion, but those sorts of objections are best dealt with at the trial.  This makes it difficult at this stage to draw conclusions on whether a link will be established and whether the evidence will also prove the existence of emotional upset in the accused of sufficient intensity and at a time which is proximate to the commission of the offences that are the subject of counts 6, 7 and 8.

6. There is another factor that makes it problematic to rule on this issue in advance of the trial.  At least some of the evidence is likely to be admissible in any event as being relevant to other issues, such as opportunity, in that it relates to where the accused was living at relevant times and what his domestic, work and social arrangements were.  Thus even if the emotional upset argument cannot ultimately be maintained some of the evidence would be admissible as being relevant to other issues.

7. In these circumstances the appropriate course is to receive the evidence provisionally.  That is, to allow it to be adduced with a view to making a final ruling on it later in the trial.  That course would not be practical in a jury trial because it would be unrealistic to expect a jury to ignore evidence that was later ruled to be irrelevant.  However in a trial by judge alone there is less difficulty because a judge is familiar with the process of sifting out irrelevant material and disregarding it.  Furthermore, the requirement to give written reasons will act to ensure that only relevant material is taken into account in determining whether the charges are proven.  The only real concern is that the defence will be required to prepare for this evidence and to cross examine witnesses on it, even though it may later be ruled inadmissible.  I accept that this will cause some additional burden to the defence, but not so much as to cause me to think that the trial would be unfair.  The alternative would be to rule on evidence prematurely, with the risk that potentially relevant evidence may be excluded.

8. For those reasons I intend to admit the evidence provisionally with a view to making a ruling at a later stage in the trial.  That ruling will be made no later than the close of the prosecution case, to ensure that before the accused is called on to present any defence evidence he knows with certainty what the admissible evidence against him is.  In order to provide clarity as to what evidence is in issue and what the basis for any ruling will be, I will set out the evidence and the arguments of the parties and any preliminary views that I have formed as to those submissions.

9. As I have noted, the emotional upset argument involves two stages.  The first is whether there is evidence of a link between emotionally upsetting events in the life of the accused and an impulse to commit a violent sexual offence against an unknown female.  In this respect the prosecution rely on evidence of reports relating to the Hollywood Hospital offence.  In regard to that evidence the defence raises a number of other objections which are independent of any issue as to relevance.  It is convenient to deal with those other objections first.

The Hollywood Hospital reports

1. Emotional trauma in a person's life does not necessarily make it any more likely that the person will commit an act of violence against an unknown person.  Thus evidence of the existence of emotional trauma in the life of the accused would have little if any relevance unless there is something to indicate how he is likely to respond to such trauma.  The evidence that the prosecution relies upon in this regard is the Hollywood Hospital reports evidence.  That evidence is critical to the prosecution's contention that the emotional upset evidence is relevant.

2. I summarised the Hollywood Hospital evidence in my ruling on propensity evidence.[2]  For convenience I will repeat that summary here.

   [2] See The State of Western Australia v Edwards [2019] WASC 87 [87] ‑ [91].

3. At around 2.30 pm on 7 May 1990, the accused, then aged 21, was at Hollywood Hospital in Nedlands attending to a fault on the PABX system in his capacity as a Telecom technician.  He entered an office in which the complainant, a 40 year old female senior social worker, was sitting.  The accused asked to use the toilet.  A toilet was located through a door at the back of the office.  The complainant was engaged in her work and only 'minimally responded' to the accused.  He went to the toilet and returned a short time later.  He then approached the complainant from behind, put a piece of material over her nose and mouth using his left hand and put his right arm over her right shoulder and across her chest.  He then began dragging the complainant backward towards the toilet.  She was seated on a chair with wheels and her chair was dragged back with her.  The accused pulled her off the chair keeping a tight grip on her and the chair fell over.

4. The complainant struggled against the accused, but was unable to scream because of the presence of the accused's hand and the material covering her mouth.  She could not move her arms because of the grip that he had on her.  After a struggle, in which the complainant kicked the accused, he loosened his grip and she broke free.  She fled into a neighbouring ward and sought help.  The accused did not say anything to the complainant during the attack, although he did say sorry to her after the attack was completed.

5. A hospital security guard attended and detained the accused until police arrived.  The accused admitted to the security guard that he had tried to drag the complainant to the toilet cubicle.  He was found by police to have cable ties in his pocket, though such ties could be used in the course of his work.

6. The accused was arrested by police and charged with one count of common assault.  He later pleaded guilty to that charge on 11 May 1990.  A conviction was recorded and a pre‑sentence report was obtained.  On 1 June 1990, the accused was sentenced in the Perth Court of Petty Sessions to 2 years' probation.  He was required to undertake a sex offender's treatment programme from 30 August 1990 to 9 May 1991.

7. The pre‑sentence report records that the accused informed the author that at the time of the offence he had been very frustrated by not being able to fix the equipment that day and that he was also under a lot of pressure in his de facto relationship.  In May 1990, the accused informed a clinical psychologist that in the week leading up to the offence he was in a state of some distress.  In particular, he admitted that he had argued with his de facto partner the evening prior to the offence and that he was still disturbed by this argument on the day of the offence.  He also said that he had been carrying a heavier emotional burden from the previous week when his de facto partner had informed him of her infidelity with a previous boyfriend earlier in the relationship.  The accused said that he had been deeply distressed by this confession.

8. In regard to the emotional upset evidence the prosecution seeks to rely on passages from the probation service pre‑sentence report of Ms Lyn Hickey dated 25 May 1990 (the PSR) and passages from the psychological report of Mr Paul McEvoy dated 28 May 1990 (the psychological report).

9. The PSR is annexed to the statement of Ms Hickey (now Millett) dated 20 January 2017 (brief HH 158).  The passages from the PSR which the State seeks to adduce are as follows:

   Passage A (brief HH 160 ‑ 161)

   The following description of the offence was supplied by the defendant.

   Edwards was working at Hollywood Repatriation Hospital on 7/5/90 in the course of his employment with Telecom.  He was in a PABX room next to the victim's office.  He asked her for directions to the nearest toilet.  He was directed down the hall, used the toilet and went back to work.  He quickly realised his pencil was missing and went back into the toilet to check for it.

   As he came out, the victim was sitting with her back to him.  Edwards placed a dishcloth over her mouth and also grabbed her around the waist.  She struggled and screamed.  Edwards stated he then realised what was happening, let her go and apologised.  She ran off and he returned to his workroom and identified himself to other hospital staff that were sent to find him.

   During the pre‑sentence interview, Edwards stated he felt very ashamed of his actions and could not identify why he did it.  He remembered being very frustrated at not being able to fix the equipment that day and he was also under a lot of pressure in his de facto relationship.

   Passage B (brief HH 161 ‑ 162)

   Edwards began dating his current girlfriend in September, 1989.  He moved out of his parents' home to live with her in December.  He described the relationship as 'fairly serious' and indicated they were trying to save money to get married, although Edwards mentioned that they are argued a lot over money as his girlfriend tended to spend quite freely.

   According to Edwards, she wants to get married as soon as possible and until he committed the offence, had been placing considerable pressure on him to set a wedding date.

   Passage C (brief HH 163)

   Edwards stated that he had very few close friends and intended to spend all his time with his girlfriend, going for drives or seeing movies.

   Passage D (brief HH 163)

   He recalled he used to drink 'quite a lot' when he was younger but made a decision not to drink when he met his current de facto.

   Passage E (brief HH 164)

   From his own admission, he tends to control his emotions and tries to suppress his anger, as he feels he has a bad temper.

10. The psychological report is annexed to the statement of Mr McEvoy dated 25 January 2017 (brief HH 153).  The passages from the psychological report which the State seeks to adduce are as follows:

    Passage A (brief HH 155)

    It appears that Mr Edwards had been in a state of some distress in the week leading up to the offence.  He explained during the first interview that he had argued with his de facto wife on an evening prior to the assault, and was still disturbed by this argument the following day.  However, on the occasion of the second interview, Mr Edwards explained that he had also been carrying a heavier emotional burden from the previous week, when his de facto wife had informed him of her infidelity (with a previous boyfriend), earlier in their relationship.  Although he insisted to her that he understood, and accepted her actions, he acknowledges that he was actually deeply distressed by her admission.

    Passage B (brief HH 156)

    Mr Edwards is unable to clearly identify why his pent‑up anger should be released when it did, or why he acted it out on his victim, a woman whom he had only met that day.  He acknowledges feeling angry that 'nothing was going right for me', but suggested that he was not angry with his victim.  He was in a state of emotional distress, related to the disruption in his relationship with his girlfriend, and reports being further frustrated that the task in which he was engaged was not going well, despite his continued efforts all day.  He did indicate that he felt slightly annoyed when his victim answered a question in a manner which he felt revealed some irritation with him.  This occurred soon before the attack.

The Hollywood Hospital reports ‑ defence submissions

1. Although a ruling has been made that the Hollywood Hospital evidence is admissible as propensity evidence and has significant probative value in proof of counts 3 ‑ 8 because it is a manifestation of a relevant tendency, the tendency as described by the prosecution at the time of the propensity argument had no emotional upset component.  Thus whilst evidence of the factual circumstances of the Hollywood Hospital incident are admissible as propensity evidence that ruling did not encompass evidence regarding the motivation of the accused or what he may have said about that offence subsequently.  The relevance of the reports evidence depends entirely on whether it is capable of supporting the contention by the prosecution that the accused responds to emotional upset, distress or turmoil in his life by assaulting females unknown to him.  However, independently of any question of relevance, the defence objects to this evidence on other grounds.

2. First, it is submitted that s 22(4) of the Sentencing Act 1995 (WA) precludes pre‑sentence reports from being 'given to anyone other than the court by or for which it was ordered and the CEO (corrections)'. It is said that the effect of this prohibition is to make reports ordered by a court inadmissible. Insofar as the prosecution suggests that this provision does not apply because it was not in force at the time the reports were ordered, the defence say that s 22 is a provision relating to practice and procedure and therefore applies to reports ordered both before and since the Sentencing Act came into force.[3] 

   [3] See Rodway v The Queen (1990) 169 CLR 515, 521.

3. Secondly, the defence submit that the court should exclude evidence from the reports in the exercise of its discretion.  It is submitted that the reports in which the identified passages are contained are not verbatim accounts of what the author and the accused said, rather they are summaries of those parts of the interviews with the accused that the authors regarded as salient.  Neither of the witnesses has any independent memory of their interaction with the accused, nor any remaining contemporaneous notes.  Given these facts and that the offence occurred nearly 30 years ago, testing the recollections of the witnesses is essentially impossible.  The question is whether the reports are a reliable account of what the accused said were the reasons he committed the Hollywood Hospital offence.  Given that the accused told both witnesses that he did not know why he did it, it is submitted that it is dangerous to rely on what the authors have reported as being admissions by him.  It is in this sense that the defence submits that it would be unfair to use the impugned admissions.

4. The defence also submit that the discretion to exclude is enlivened by other fairness considerations.  The defence argue that whilst it would be self‑evident to a person in the accused's position that anything said to the witnesses could be used against him in the proceedings to which the reports relate, it is equally true that he would expect that they would be the only proceedings in which they would be used.  It is said that if an accused person knew that his statements in this context would or might not be confined to the instant proceedings he might have no incentive to be honest and the potential for the integrity and utility of the pre‑sentence report process to be undermined is very real.  The defence referred to a case in the District Court where an application was made by the prosecution to adduce statements made by an accused in a pre‑sentence report relating to earlier unrelated offences as evidence of propensity.[4]  One of the issues taken into account in that case was whether the statements should be excluded for public policy reasons because to admit them may undermine the aims and usefulness of pre‑sentence reports.  The concern was that to admit the evidence may have the effect of discouraging lawyers from requesting pre‑sentence reports and accused persons from participating in them or from pleading guilty where they have other outstanding charges and fear the consequences of participating in a pre‑sentence report.  It may also discourage offenders from making frank disclosures to officers preparing those reports. 

   [4] The State of Western Australia v RGS [2009] WADC 94.

5. Thirdly, the defence submit that the implied undertaking not to use documents obtained in the course of proceedings for a collateral purpose, sometimes known as the 'Harman undertaking',[5] applies in criminal as well as civil proceedings.  It is submitted that the undertaking applies not only to those who directly receive documents as a result of a coercive or compulsory court process but also to any person who receives documents or information to which the implied undertaking attaches.  This includes third parties who receive documents and are aware that they have been obtained in the course of legal proceedings.  The relevant effect of the implied undertaking is that the party cannot use documents or copies of them for any purpose that is collateral to the purpose which production of the documents was intended to serve.  Whilst a Harman undertaking comes to an end if a document is tendered in evidence or the court releases those bound by the undertaking, the defence submits that there is no evidence here that the relevant reports were tendered or that leave of the Magistrates Court has been obtained.  It may be safely assumed that the magistrate had regard to the reports but that does not mean that they were tendered.  The defence submits that if the reports were not tendered then the undertaking would remain and the leave of the court that ordered the reports would be required to use them in these proceedings.

   [5] Harman v Secretaryof State for theHome Department [1983] 1 AC 280; [1982] 1 All ER 532.

The Hollywood Hospital reports ‑ prosecution submissions

1. The prosecution notes that the pre‑sentence reports were ordered by a magistrate on or about 11 May 1990 upon the accused's plea of guilty to the summary offence of common assault.  At that time the relevant legislation was the Offenders Probation and Parole Act 1963 (WA) (OPP Act). Section 8 of the OPP Act enabled the court to order 'reports and information' with respect to convicted persons. Section 9 enabled the court to place persons convicted of certain offences under the supervision of probation officers and s 9(1a) enabled the court to order reports regarding a convicted person prior to the sentencing of that person. Section 51 of the OPP Act prohibited certain persons from producing or disclosing any materials or information which they received or prepared in the performance of their duties under the act unless ordered by a court or judge to do so or for the purposes of the Act.

2. The prosecution submits that the prohibition in s 51 of the OPP Act applies only to a member or the secretary to the board, a parole officer, probation officer or any other officer appointed under or for the purpose of the Act. It is said that Ms Hickey and Mr McEvoy were, at the time of preparing their reports, self‑employed as psychologists who on occasion were contracted by the Department of Corrective Services to prepare pre‑sentence reports. The prosecution questions whether either of Ms Hickey or Mr McEvoy could be considered an officer appointed for the purposes of the Act and whether, in any event, the prohibition in s 51 has any bearing on the admissibility of their reports in the present proceedings. The prosecution says that s 22(4) of the Sentencing Act was not in operation at the time the reports were requested and produced and has no application to the present case.

3. The State submits that the admissions by the accused to Ms Hickey and Mr McEvoy were voluntary.  It is not necessary to canvass that issue further as it is not asserted on behalf of the accused that voluntariness is an issue.  The State also submits that the court should not exercise its discretion to exclude the evidence on either unfairness or public policy grounds.

4. As to reliability, the State accepts that this is an important factor in considering whether the discretion to exclude on the grounds of unfairness should be exercised.  It is submitted that there is no basis upon which to doubt the reliability of the impugned admissions.  The State says that there is other evidence which corroborates what was reportedly said by the accused.  It is also noted that the reports were prepared at a time which is proximate to the Hollywood Hospital offence and that there is no suggestion that the accused has resiled from those accounts or explanations since that time.  In regard to corroboration the State refers to an admission alleged to have been made by the accused to his second wife (CG) to the effect that he assaulted the victim of the Hollywood Hospital offence because his girlfriend at the time (who later became his first wife) had 'cheated' on him.[6]

   [6] Statement of CG at brief BRE 313.

5. As to public policy considerations, the State submits that this discretion has generally been exercised in cases in which persons in authority have acted unlawfully in procuring an admission.  That is not the case here.  There is no assertion of improper or unfair conduct on the part of Ms Hickey or Mr McEvoy.  The State acknowledged the concerns that offenders may be discouraged from participating in PSRs if confidentiality was not maintained but said that such concerns were not always realistic.  In the present case the State submits that whilst such impacts are theoretically possible, in reality they are improbable and speculative.  This is said to be for two reasons:

   (1)First, because the State is proposing to adduce the accused's account of and explanation for his commission of an offence where evidence of the commission of that offence and conduct relating to it will already be in evidence at the trial.  The State points to the fact that this is an offence to which the accused pleaded guilty and the State is not endeavouring to use the impugned admissions to prove he committed the offence, only to show his admitted motive in doing so.

   (2)Second, because there has been no evidence that the State can find to suggest that the use against sex offenders of admissions and statements made by them in pre‑sentence or other court ordered reports (for example in dangerous sexual offender proceedings) has had the effect of discouraging sex offenders from participating in those pre‑sentence interviews, or making full and frank disclosures to the authors of reports.

Admissibility of the Hollywood Hospital reports evidence

1. As regards the reliance on s 22 of the Sentencing Act, that section provides:

   22.Pre‑sentence report, preparation of

   (1)The CEO (corrections) is to ensure that pre‑sentence reports are made ‑

   (a)by appropriately qualified people; and

   (b)as soon as practicable and in any event within 14 days before the sentencing day.

   (2)A pre‑sentence report may be made by more than one person.

   (3)A pre‑sentence report may be made in writing or orally.

   (4)A written pre‑sentence report must not be given to anyone other than the court by or for which it was ordered and the CEO (corrections).

   (4a)The CEO (corrections) may use the information in a pre‑sentence report to assist with the management of the convicted or sentenced offender to whom the report relates.

   (5)A court may make a pre‑sentence report available to the prosecutor and to the offender, on such conditions as it thinks fit.

2. This is plainly a provision that relates to procedure and as such I accept that it has application in respect of reports that were prepared prior to its coming into effect.  The phrase 'pre‑sentence report' is not defined in the Sentencing Act and there is no reason to give it a restricted meaning.  However that section only imposes obligations of confidence on those who prepare the reports or are in possession of them.  It does not make such reports inadmissible in proceedings, nor does it make witnesses who are compelled to attend court immune from being questioned about those reports.[7] A duty of confidence, statutory or not, does not in itself create a privilege. In my view s 22 (and the statutory provisions that preceded it) is relevant only in assessing the public interest factors that pertain to the exercise of the discretion to exclude, in that they reveal an intention on the part of the legislature that normally such reports will be kept confidential.

   [7] No argument has been raised that the discretion to exclude illegally or improperly obtained evidence should be exercised.

3. As to the reliability of the reports, I accept that they are not, and do not purport to be, a verbatim account of what the accused said to the report writers.  What is recorded is a summary and may include some element of interpretation of what the accused told the witnesses.  On the other hand both witnesses were independent, professional report writers who had no interest in providing anything other than an accurate and truthful account of what the accused told them.  The fact that the reports were being prepared for use by a court must also have caused the authors to exercise care in preparing them.  As to the defence submission that the accused told the report writers at some points that he did not know why he had committed the Hollywood Hospital offence, I appreciate that he may have been invited by the witnesses to reflect on his conduct and to provide explanations that might otherwise not have occurred to him.  Nonetheless the fact is that when asked to so reflect one of the factors that he considered relevant was tension in his relationship with his then girlfriend and, in particular, a recent revelation of infidelity and an argument the evening before.  Whilst he also mentioned frustration with the work that he was then doing, he clearly considered that emotionally upsetting features of his personal relationship was a sufficiently significant factor to mention to the report writers.  Cross‑examination may be more difficult given that the witnesses have no independent recollection of what was said, but this is a matter that in my view can be taken into account in assessing the weight to be given to the evidence.  I do not consider that the concern about unreliability justifies the exercise of the discretion to exclude this evidence.

4. As to public policy considerations, I acknowledge the importance of encouraging offenders who participate in the preparation of reports to be frank and honest.  There is a risk that if convicted persons know that what they say can be used against them in other unrelated proceedings there may be an incentive to be less frank.  This is a consideration that depends very much on the particular circumstances.  For example it is noteworthy that in the case referred to by the defence[8] the accused revealed an aspect of his character that was clearly adverse and which was then sought to be relied upon as propensity evidence in subsequent proceedings.  In the present case the accused gave the information to the witnesses in order to provide an explanation for his conduct.  It was in his interests to provide an explanation that suggested that the offence arose in exceptional circumstances.  This might mitigate the offence and make rehabilitation a more viable prospect.  The information he provided was not of disreputable or illegal conduct such as would raise any concern that it might be used in any future proceedings.  That is, it is not information of a type that, at the time, would have raised any expectation of confidentiality or was likely to have been induced by such an expectation.  It has only assumed significance in these proceedings because the emotional upset motive is said to be relevant in identifying the offender in respect of counts 6 ‑ 8.  Ultimately any exercise of discretion on public policy grounds has to be a balancing exercise.  The public need to bring to conviction those who commit offences has to be weighed against the public interest in protecting the individual from unfair treatment.[9]  In this case I do not consider that the public policy factors referred to, as important as they are, justify exercising the discretion to exclude this evidence.

   [8] RGS.

   [9] R v Ireland (1970) 126 CLR 321.

5. As to the Harman undertaking, whether or not (and to the extent that) it has application in criminal proceedings, it has no realistic application to the facts of this case.  Such an undertaking applies to ensure that parties to court proceedings are not prejudiced by having to disclose otherwise confidential material in order to participate in those proceedings.  In civil proceedings this generally relates to documents revealed as part of the discovery process.  Production of material pursuant to statutory disclosure obligations or in response to a summons may raise the same considerations.  The undertaking arises where a party is compelled, by statute, rules of the court, court order, or otherwise, to disclose documents or information.[10]  Participation in pre‑sentence report interviews is, however, not a suitable analogy.  Whilst confidential information may be provided during the course of those interviews it is not provided under compulsion.  Although it is usually in the interests of an offender to participate in the preparation of such reports there is no legal requirement to do so (and offenders sometimes decline to do so).  Even where participation does occur there is no obligation to provide an explanation for the offending, such as that given by the accused here.

   [10] Hearne v Street (2008) 235 CLR 125 [96].

6. For these reasons, subject to a final ruling as to its relevance, I am satisfied that the evidence of the Hollywood Hospital reports can be adduced at the trial.

The emotional upset evidence

1. In a previous ruling I identified a number of parts of the evidence which were objected to and which the State said were relevant to the emotional upset argument.[11]  At that time a decision was deferred pending further submissions.  In the interim a number of additional statements were provided to the defence in which further objections falling into this category were identified.  This evidence covers the period between late 1994 and early 1997.  It relates to the nature of the accused's personal relationships during this period and his emotional state, generally and at times close to the commission of the alleged offences.  I will identify the evidence in issue by reference to the witness statements.

EB

[11] The State of Western Australia v Edwards [No 2] [2019] WASC 282 [17] ‑ [25], [52] ‑ [53].

1. EB was the first wife of the accused.  They met in 1988 or 1989 and commenced a relationship in mid‑1989 to early 1990 and married on 23 November 1991.  The parts of EB's statements that are in dispute are as follows. 

   (1)Statement of 30 December 2016 (brief BRE 1): pars 158 ‑ 161, 163 ‑ 166, 167 ‑ 168, 171 ‑ 190, 196 ‑ 201, 203 ‑ 209, part of 210, 211 ‑ 213 and 277 ‑ 279.

   (2)Statement of 12 February 2019: the whole of the statement.

   (3)Statement of 3 September 2019: pars 84 ‑ 86, 157, 175, 179 ‑ 182, 192 ‑ 198, part of 228, part of 231 ‑ 232, 235 ‑ 239, 240 ‑ 247, 248 ‑ 260, 261 ‑ 287, 288 ‑ 302 and 312 ‑ 319.

2. A summary of that evidence is as follows.  EB states that after they had been married around four years, in around mid‑1995, the accused was always on the computer at night.  She states that she would go to bed on her own and he would stay on the computer until 3.00 am.  She states that she started to go out on her own with work friends.  This would occur once a month and she would be home by 9.00 pm to 10.00 pm.  She then began an affair with DF.  DF stayed at the Huntingdale house for a month or so and had his own bedroom and house key.  Once EB and DF realised that they had feelings for each other DF moved out of the house.  They continued to meet, in particular because EB had horses and DF's children wished to ride them.  EB eventually moved out to be with DF in early 1996.  After this the accused was living at the former matrimonial home in Huntingdale on his own.  At some later stage there was an occasion when EB went to collect some of her property from the accused's mother's house.  The accused was there and he was 'okay with me'.  Soon after this EB attended a birthday party for one of the accused's family members and she stayed the night with the accused.  In February 1996 EB went to the former matrimonial home to pick up her dog and some belongings.  Her property was neatly packed in the lounge/dining area.  It included all of their wedding and engagement presents.  EB states that the accused did not appear to care that she had left him because he did not say anything.  She became pregnant whilst in the relationship with DF.  Whilst she was heavily pregnant the accused visited her and presented her with divorce papers.  The accused asked EB if she was sure that the child was DF's and not his.  She told him that it was DF's baby.  He said that he would like to continue paying medical insurance and he continued payments on a car that EB was using. 

3. In her statement of 12 February 2019 EB states that she became aware she was pregnant shortly after attending a party in April 1996.  She did a home pregnancy test and then went to a local doctor who confirmed that she was pregnant.  Shortly after she found that she was pregnant EB decided to tell the accused.  This would have been in April or May 1996.  She states that she told him only a couple of weeks after the doctor confirmed that she was pregnant.  She told him over the telephone that she was pregnant and that the baby was DF's.  The reaction of the accused was that 'he just went quiet'.

4. In her 3 September 2019 statement EB provides additional details.  She states that during their marriage the accused would drink alcohol but nothing excessive.  She stopped going to events at the Edwards family house when the relationship was breaking down.  Intimacy with the accused stopped once the relationship with DF started.  She recalls an occasion when she visited DF at a house in Bassendean and her car broke down.  The accused came over to fix it.  He did not question her as to why she was at DF's house.  She believes that she stayed overnight with DF once or twice and would have told the accused that she was going out with friends from work.  During the period that DF was staying at the marital home EB can recall an occasion when they were talking and cuddling.  She turned around and saw that the accused was in the doorway.  He walked off and EB later apologised to him.  The accused asked what was going on.  EB told him 'nothing' and he accepted it.  She states that the accused never questioned her about DF again, that they did not argue and that he never showed emotion.  When EB left the Huntingdale house she did not tell the accused where she was going.  He did not contact or call her to find out where she was or why she had gone.  She says that the accused did not get angry or yell when they broke up.  He never asked her to stay or to return.  She had very little contact with the accused after she left.  She sets out the circumstances when they had contact and the property settlement on their divorce.  On the occasion that EB stayed the night there was a conversation the following morning where she asked him whether they were doing the right thing by separating.  The accused said nothing and left.  EB provides further detail as to the occasion she went to the Huntingdale house to collect the dog and her belongings.  She also provides further detail as to the occasion that she told the accused she was pregnant.  She has been shown Medicare records and believes that the doctor confirmed she was pregnant on 4 June 1996 and that shortly after this she decided to tell the accused.  She told him before she had an ultrasound on 12 June 1996.  EB also provides further details regarding the transfer of a car into her name and the delivery of the divorce papers.

5. EB's evidence is the most significant evidence falling into the emotional upset category.  It is relied upon by the State to show how the relationship between the accused and EB progressed, deteriorated and failed.  Particular reliance is placed on incidents said to be close in time to the commission of the offences the subject of counts 6 ‑ 8.  Those incidents will be referred to in more detail later.  Even though the accused did not display overt emotional response to these incidents, they are said to be likely by their nature to have caused him to be upset.

Tracey Chrystal

1. Ms Chrystal was in a relationship with the accused's brother in 1996.  The parts of Ms Chrystal's statement of 31 July 2019 that are in dispute are pars 17 ‑ 19 and 20.

2. A summary of that evidence is as follows.  Ms Chrystal split up with the accused's brother sometime around the end of May to early July 1996.  In around August to September 1996 she was staying at her parents' house in Neerabup whilst they were overseas.  During this period the accused came to visit her.  He stayed for a couple of hours but she cannot recall what they talked about.  As he was leaving he gave her a peck on the cheek.  Earlier that year, somewhere near 18 or 19 April 1996, Ms Chrystal went to a birthday party at which the accused, CH (a woman whom the accused was then dating) and the accused's brother were also present.  CH became sick and left the party early.  The accused left shortly afterwards but Ms Chrystal does not know where he went. 

3. As regards the meeting at Ms Chrystal's parents' home, evidence relating to this incident was also referred to in an earlier statement and was agreed to be inadmissible.  I have assumed that the prosecution has resiled from that concession.  The prosecution has asserted that this evidence is relevant to 'time lining' where the accused was living at relevant times and when he was in a relationship with CH, as well as being relevant to the emotional upset argument.  It is difficult to see how this evidence particularly assists with placing in time either of the matters referred to.  If it has relevance in those respects it is slight.  There is no merit in the suggestion that this evidence says anything useful regarding whether the accused was upset or emotionally traumatised at any relevant time.  There is nothing in Ms Chrystal's statement to suggest he was.

CH

1. CH met the accused a number of times in 1996 because a good friend of hers, Ms Chrystal, was going out with the accused's brother.  She went out to restaurants with the accused on a number of occasions.  The parts of CH's statement of 31 July 2019 that are in dispute are pars 9, 12, 15, 17, 18 and 38.  Objection is also taken to par 33 of her statement of 15 January 2017 (brief BRE 4).

2. A summary of that evidence is as follows.  After CH stopped seeing the accused he continued calling her and leaving messages.  This continued into November 1996.  The contact was not harassing but it was continuous.  It was only after she moved to live with a man to whom she was engaged that the accused stopped contacting her, because he no longer knew where she lived.  She says that during the period she knew the accused he predominantly called her in the evenings and she understood this was because he was on the road a lot for work during the day.  When they went out together the accused never left her side, including waiting outside when she went to the toilet.  She can recall one occasion going out to dinner with the accused at an Italian restaurant in Northbridge.  The defence agree that par 17 can be admitted and the prosecution agree that par 18 regarding a conversation that occurred at that dinner should be excluded.  The relationship dwindled after Ms Chrystal and the accused's brother broke up.  However CH states that the accused 'remained persistent with me throughout this time'.

3. It is frankly difficult to see what this evidence contributes to the question of whether the accused was in a state of emotional distress at any relevant time.  CH does not refer to the accused being upset or showing any notable emotion.  The only possible relevance of this evidence is in providing some context to the accused's interactions with EB and the possibility that he retained feelings for her, that is that although he dated CH in 1996 the relationship did not develop into anything serious.

Paul Luff

1. Mr Luff is a former work colleague of the accused.  The parts of Mr Luff's statements that are in dispute are as follows. 

   (1)Statement of 4 November 2017 (brief BRE 5): pars 36 ‑ 45, 139, 140 and 145 ‑ 147.

   (2)Statement of 22 July 2019: pars 7 ‑ 11 and 48 ‑ 50.

2. A summary of the evidence is as follows.  Mr Luff states that the accused took his separation from EB 'really hard'.  He says that the accused never discussed the breakup in any detail and always kept things to himself.  The accused was drinking heavily when this happened.  In particular he was drinking bottles of Cougar bourbon.  After being asked by the accused's parents to keep an eye on him, Mr Luff had a conversation with the accused in which the accused said how much he was drinking and that he needed to cut back as it was hard on his body.  Mr Luff is aware that the accused was drinking with another work colleague at this time, Murray Cook.  Although the accused was drinking heavily it did not affect his work and he never had any extended time off.  After the accused met and married his second wife (CG) his drinking decreased and he would always go home at the end of a work day.  Mr Luff says that he has known the accused to have dark times when his relationships have broken down and that the accused has spoken to him about this.

3. In his statement of 22 July 2019 Mr Luff provides further details.  He states that he probably found out about the accused splitting up from EB from the accused's parents.  He says that the accused was very upset and teary when they spoke about it.  They only spoke about the separation on one occasion.  The accused was drinking more and more often after he and EB separated and before he met his second wife CG.  Mr Luff knew this from what the accused told him rather than from what he observed.  Mr Luff did not speak to the accused about his drinking when he was together with EB because at that time it did not appear that he had any issues with drinking.  The drinking issues appeared to stop around the time the accused met CG.  Mr Luff said that when he referred to the accused having dark times in his previous statement he meant that the accused would be very depressed and upset about his relationships breaking down.  He believes he would have asked the accused whether he had contemplated suicide but the accused told him it was not an issue.  He believes that the accused was very focussed on his relationships.

4. This evidence is general in nature.  There are no specific incidents identified.  It is, however, capable of supporting an inference that the accused was emotionally distressed by the break‑up with EB.  There may be issues as to the basis of Mr Luff's conclusions, and this can be explored in cross‑examination.

KM

1. KM is a woman with whom the accused had a relationship in 1996.  The parts of her statements to which objection is taken are as follows.

   (1)Statement of 28 December 2016 (brief BRE 2): pars 23 and 24.

   (2)Statement of 19 July 2019: pars 9 ‑ 11.

2. A summary of that evidence is as follows.  When KM and the accused first started dating he told her about separating from his first wife.  He said that she had fallen pregnant to another man.  He also said that he and his ex‑wife used to live in Huntingdale.  In her later statement KM provides further details.  She states that the accused told her that his ex‑wife had been the girlfriend of another man in their group of friends but that he had won her heart.  In early 1997 the accused told KM that his ex‑wife had given birth to a baby girl and told her the name of the child.  She says that anything that she knows about the accused's ex‑wife came from him and that she has never met or spoken to his ex‑wife.

3. This evidence does not indicate emotional distress on the part of the accused.  At most it might show that the accused remained interested in EB and that he blamed her for the failure of the marriage.

Karen McInroy

1. Ms McInroy was a friend of the accused's first wife (EB).  The parts of her statements to which objection is taken are as follows.

   (1)Statement of 28 March 2017 (brief BRE 3A): pars 25 ‑ 28, 34 ‑ 36, 37 and 47 ‑ 50.

   (2)Statement of 5 July 2019: pars 39 ‑ 53 and 71 ‑ 82.

2. A summary of that evidence is as follows.  Whilst the accused and EB's relationship appeared pretty normal they later began to get distant and grew apart.  EB was unhappy due to a lack of attention from the accused who was spending a lot of time on his computer.  During this time EB started to develop another relationship with DF.  EB had met DF whilst she was working for a law firm and DF was doing some contract cabinetry work at the firm.  DF was housesitting for a friend and then moved in with the accused and EB to their house in Huntingdale.  He moved in sometime during 1995 for up to six months.  It was obvious that EB and DF had feelings for each other.  In late December 1996 or early January 1997 the accused attended unannounced at Ms McInroy's home in Forrestfield.  Ms McInroy says that the accused was upset with her because she had not been to see EB and her baby.

3. In her more recent statement Ms McInroy provides further details.  She describes the accused as pretty quiet and that he seemed to be very level headed and to not lose his cool or raise his voice or appear angry.  These observations remained the same even when the accused and EB's relationship had started to deteriorate.  EB told her in 1994 that she was unhappy with the accused because of lack of attention from him as he was spending a lot of time on his computer.  It was at or about this time that EB told her that she had met DF.  In mid‑1994 EB spoke to Ms McInroy about DF and his children coming to an agistment centre to ride the horses owned by EB and Ms McInroy.  Ms McInroy first met DF in mid‑1994 at the agistment centre.  Based on her observations she believed that EB and DF were growing closer.  The accused came only very occasionally to the agistment centre and she does not remember him being there when DF was there.  It was not until 31 December 1994 that the nature of the relationship between EB and DF was confirmed, though she believed something was developing between them prior to this date.  On that date she attended a party at a house that DF was house minding.  EB was present from the afternoon but the accused did not arrive until early evening.  Prior to the accused arriving Ms McInroy observed interaction between EB and DF and it was apparent from their body language and demeanour that they had become a lot closer.  She recalls speaking to EB about it but cannot recall whether the behaviour changed significantly after the accused arrived or whether he noticed anything.  As to the conversation at her house in Forrestfield in early 1997, Ms McInroy states that initially the conversation with the accused seemed fine but that his demeanour changed significantly when she told him she had not yet visited EB and her baby.  She said that he became angry and intense and told her that she had done the wrong thing by EB.  She had never seen the accused behave like that before and this is what causes her to recall the incident.  This was the last time she had any contact or communication with the accused.

4. This evidence relates to the breakdown of the marriage of EB and the accused.  It confirms the circumstances as described by EB, though it is not apparent when the accused became aware of the developing relationship between EB and DF.  The conversation in 1997 may bear an interpretation that the accused remained emotionally attached to EB and concerned for her welfare.

Christopher Nixon

1. Mr Nixon is a former work colleague of the accused and also was in a relationship with EB prior to her commencing a relationship with the accused.  The parts of Mr Nixon's evidence that are objected to are in his statement of 30 July 2019 at pars 24 ‑ 37.

2. A summary of the evidence is as follows.  Mr Nixon can recall attending an event called the Sandhurst Run in 1989 and believes that it was shortly after this time that he broke up with EB and left the Noranda house that they were then living in.  He believes he came back to Perth earlier than expected and when he arrived at the villa in Noranda the accused was there with EB.  He was shown various documents and newspaper records and on the basis of these is able to say that he was still in a relationship with EB in March of 1989 and that the Sandhurst Run event was in August that year.

3. This evidence says nothing about the emotional state of the accused.  The relevance of it appears to be limited to determining a time when the relationship between EB and the accused commenced.  It is not apparent to me why that is a relevant issue.

Billie Marie Browne

1. Ms Browne was a friend of EB and shared a house with her, Mr Nixon and (later) the accused in Noranda.  The parts of her statements to which objections are taken are as follows.

   (1)Statement of 7 June 2019 (brief BRE 3A): pars 1 ‑ 19, 34 and 35.

   (2)Statement of 18 June 2019: pars 2 and 4.

2. A summary of the evidence is as follows.  Ms Browne lived at the unit in Noranda with EB, Mr Nixon and another man.  She moved into the unit either at the end of May or end of June 1988.  She continued to live there until sometime in 1990.  After she moved into the house EB and Mr Nixon, who had been in a relationship, broke up.  She initially believed this was about a month after she moved in but by reference to contemporaneous photographs she now believes that they broke up sometime after the Bindoon Rock Concert, which was in January 1989.  She continued to share the house after the accused moved in.  She states that she does not remember the accused being much of a drinker when she knew him.

3. This evidence falls into the same category as that of Mr Nixon.

CG

1. CG is the accused's second wife.  Objection is taken to par 81 of her statement of 7 February 2017.

2. A summary of that evidence is as follows.  CG states that the accused rarely drank alcohol.  His favourite drink is bourbon.  He got drunk on a couple of occasions at work functions like Christmas parties and other events but he was not the sort of person to sit at home and drink.

3. The only relevance of this appears to be that there was a change in the accused's drinking habits after he met CG.  This is supported by the evidence of Mr Luff.  The prosecution argument is that the accused's drinking was a product of emotional distress and the fact that it largely stopped after he met CG is consistent with that.

DF

1. DF is the man with whom EB commenced a relationship in 1996.  Objection is taken to the whole of his statement of 21 February 2017.

2. A summary of that evidence is as follows.  DF says that he met EB when he was doing subcontract work at a law firm in September 1994.  She offered to give his children riding lessons and he accepted.  It was at the horse riding lessons that he met the accused and found out that EB was married.  In the following days at her work they continued to chat and he offered to take her out to dinner as a thank you for taking his children on riding lessons.  They commenced a sexual relationship soon after.  He recounts a conversation he had with EB in which she made an allegation about the accused.  On 4 October 1994 DF returned to the United Kingdom for about five weeks, arriving back in Australia on 10 November 1994.  Sometime after he returned he recommenced seeing EB.  She was living at the Huntingdale house and he was living in Bassendean.  She would drive to see him in a Ford LTD.  Because the car was expensive to run and because she had invited him to watch television at her house he started to go there.  In either January or February 1995 EB suggested that DF move in.  A couple of weeks later he moved into the house.  He had a bedroom at the back.  EB and DF continued to have a sexual relationship whilst he was living at the house.  Mostly this was when the accused was out and, as far as DF was aware, the accused did not know about it.  Whilst he was living at the house the accused would come home from work and go straight to his computer room and play on his computer until late at night.  EB would often make the accused his dinner and take it to him whilst he played on the computer.  DF made an effort to be friendly with the accused and joined a softball team in which they both played.  DF is able to describe the cars that were used by the accused and EB at this time, including a Telstra Toyota Camry station wagon, which was white.  He can recall an occasion when he and EB met at the Esplanade Hotel and stayed the night together.  Sometime in January 1996 EB came to DF's room to speak to him about some photographs.  They kissed and were caught by the accused.  He ran off and EB followed him.  DF could hear them arguing and crying.  DF offered to leave but EB begged him not to go and said that the accused did not want him to leave.  The accused then came to his door and told him to stop packing and that he would like him to stay.  DF decided to stay but moved about a month later in February 1996.  He continued to see EB and she eventually moved in with him around February or March 1996.  After she had moved in with him the accused rang him and abused him and said 'you've been having an affair with my missus'.  The accused threatened DF and said that he knew where he lived.  DF never heard from the accused again after that.  EB fell pregnant after moving in with DF and their child was born in December 1996.  He and EB separated in 2000.

3. This evidence relates to the breakdown of the marriage of EB and the accused.  It confirms the circumstances as described by EB, and an incident (the kissing incident) that may have resulted in the accused becoming aware of the relationship between EB and DF.  It is capable of showing that, on occasions, the accused displayed emotional distress regarding the breakdown of the marriage.

Emotional upset evidence ‑ State's submissions

1. The State submits that the emotional upset evidence is admissible as circumstantial evidence tending to establish a motive for the accused with respect to counts 6 ‑ 8. The State does not seek the admission of this evidence as propensity evidence under s 31A of the Evidence Act 1906 (WA), though they say it could arguably be admissible on that basis. The fact that evidence may come within the ambit of s 31A does not mean that it is not admissible on another basis. Section 31A does not exclusively define the circumstances in which evidence that might come within its scope is admissible. If the evidence is admissible under the common law, for instance to prove motive, it is unnecessary to invoke s 31A. In this case the State submits that the emotional upset evidence is admissible in proof of motive, which does not employ propensity reasoning.

2. The State is not obliged to establish a motive for the offences; however the presence or absence of motive is a relevant and admissible circumstance in any circumstantial case.  The State relies on Mutual Life Insurance Co of New York v Moss[12] to support the proposition that the existence of a motive may tend to show either that the person in question did the act alleged or that he did it intentionally.  Evidence of motive is relevant and admissible if it establishes an 'inducement' to commit the crime in question.  The inducement may be sourced in an emotional response to external circumstances or a rational response to those circumstances. 

   [12] Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311 (per Griffith CJ with whom Barton and Higgins JJ agreed at 317).

3. The State submits that the term 'motive' has not been definitively judicially defined in Australia but the existence of two possible meanings has been discussed.  The first meaning is the emotion prompting an act, with the usual example being that a man killed his wife's lover from a motive of jealously.  The State relies on a passage from Wigmore[13] in support of this meaning.  The second meaning is the object or purpose a person wants (or hopes) to achieve by a contemplated act; for example a man killed another with the motive of stopping him from paying attention to his wife.  The State refers to a passage in Glanville Williams[14] in regard to this meaning.  Motive may be 'the reason that nudges the will and prods the mind to indulge the criminal intent'.[15]  It may be the feeling that prompts the operation of the will or the ulterior object of the person willing.  In R v Heath[16] Cooper J observed that rigid adherence to either definition may lead, incorrectly, to the exclusion of relevant evidence going to the question of inducement to commit crime.

   [13] Wigmore on Evidence (revised edition, 1983) vol 1A, 1697‑98.

   [14] Glanville Williams, Criminal Law: The General Part, (2^nd edition, 1961), 48.

   [15] United States v Benton (1981) 637 F 2d 1052, 1056.

   [16] R v Heath [1991] 2 Qd R 182, 201 ‑ 202.

4. The State refers to the decision of the High Court in R v Baden‑Clay[17] in which the views expressed by Cooper J in Heath were referenced.  In Baden‑Clay the High Court referred to the two meanings as a mere 'terminological' difference[18] which should not be allowed to obscure the undeniable relevance of the relations of a murdered person to his or her assailant so far as those relations may reasonably be treated as explanatory of the conduct of the accused.

   [17] R v Baden‑Clay (2016) 258 CLR 308.

   [18] at 330.

5. The State submits that the authorities support a conclusion that neither meaning of motive is to be preferred to the exclusion of the other.  Even if the evidence sought to be adduced in proof of motive falls into one or other of the meanings, ultimately each case is to be looked at on its merits and the relevance of evidence said to prove motive must be determined in the context of that case.

6. In the present case the State contends that each of counts 6 ‑ 8 was committed by the accused during problematic periods in his relationship with EB.  That is to say, they occurred at times when the accused was under emotional stress or experiencing emotional turmoil or instability in his private life.  When experiencing such circumstances in May 1990 the accused committed the Hollywood Hospital offence and, importantly, admitted that that emotional turmoil prompted that offence.

1. The State says that taking the evidence at its highest from the perspective of the prosecution the following facts are capable of being proved, either directly or inferentially from the emotional upset evidence:

   (a)But for the events surrounding the Hollywood Hospital offence, between the period of mid‑1989 to mid‑1994 the accused and EB shared a close, loving, respectful and stable relationship, first as de facto partners and then as husband and wife.

   (b)In the week leading up to the Hollywood Hospital offence, the accused was experiencing feelings of betrayal and instability in his personal life on account of what EB told him about being unfaithful to him earlier in their relationship and by being put under pressure by her to get married.  Despite outwardly indicating that he was unaffected by this disclosure, the accused was in fact deeply distressed by EB's confession.  On 7 May 1990 the accused attacked a female victim in the Hollywood Hospital offence, a woman who was a complete stranger to him, in significant part because of his feelings of intense anger and stress on account of what had been happening in his personal life.

   (c)But for the Hollywood Hospital offence it is not alleged that the accused committed any offences at all during this five year period (1989 ‑ 1994).

   (d)By late 1994 the accused's relationship with EB was strained.  For the period between late 1994 and April 1997 the accused was under emotional stress and instability due to the deterioration and subsequent breakdown of his marriage to EB which included her infidelity.  When EB separated from the accused and he was left to live alone at the matrimonial home in Huntingdale he increased his intake of alcohol and appeared to a close friend to be depressed and broken.

   (e)The accused lived as a single man from January 1996 to April 1997.  This period encompassed the time during which counts 6, 7 and 8 were committed.  For the last four months of this period the accused lived alone.

   (f)In February 1995 the accused and EB were becoming estranged.  EB was in an intimate relationship with DF and the accused and EB were spending less time together.

   (g)By late January 1996 the accused was aware of an intimate relationship between EB and DF.  EB left the matrimonial home.  The marriage between the accused and EB had broken down.

   (h)On a day leading up to Australia Day 1996 the accused attended unannounced at EB's mother's house and asked if she wished to accompany him to the Australia Day fireworks to be held in Mandurah.  She declined to attend the fireworks with him.  The State says that this can be interpreted as a rejection of a gesture of reconciliation.  This is said to be the accumulation of significant emotional upheaval in the accused's personal life in the immediate lead up to the disappearance of Sarah Spiers in the early hours of 27 January 1996. 

   (i)Even if the specific matters referred to in (h) are not established the State maintains that the other evidence shows that around the time of the alleged commission of count 6 the accused's marriage had broken down due to his wife's infidelity.

   (j)In June 1996 the accused was living with his parents in their home in Huntingdale.  At this time the accused was single, despite efforts to commence a relationship with CH.  Those efforts continued over several months during which he kept the existence of his marriage to EB a secret.

   (k)On 4 June 1996 EB attended a doctor where her belief that she was pregnant was confirmed.  Shortly after this EB telephoned the accused and told him that she was pregnant and that DF was the father of the child.  The accused did not outwardly react to being told of this news.  The State submits that the emotional impact on the accused of receiving this news must have been significant.  Jane Rimmer was abducted and murdered on 9 June 1996.

   (l)If the specific events referred to in (k) are not established the State maintains that the evidence nevertheless will establish that at the time of alleged commission of count 7 the accused was a single man without an intimate stable relationship with another woman in circumstances where EB was now living with DF in a de facto relationship.  The State says that these circumstances were such that the accused would have continued to feel emotional insecurity and instability.

   (m)By the end of 1996 the accused was in a casual sexual relationship with KM.  By late February 1997 that relationship had taken a significant downhill turn following which they had more limited contact in March 1997.

   (n)In March 1997 the accused was in the process of attempting to sell the matrimonial home in Huntingdale.  His relationship with KM had deteriorated to the point where she knew that the end of that relationship was imminent.  On 2 March 1997 the accused arranged for EB to sign an offer and acceptance for the sale of the former matrimonial home.  This was the first significant interaction that the accused had had with EB since she had given birth to her child.  These events occurred whilst the accused's parents were residing overseas and, it is alleged, he lacked any family support or assistance.  On 14 March 1997 Ciara Glennon was abducted and murdered.

   (o)In early April 1997 the accused met and commenced a relationship with CG, a woman who was of similar age to him and who had a young daughter.  At around this time the accused contacted KM to advise that their relationship was at an end because he had commenced a relationship with another woman.  The relationship with CG grew stronger and lasted some 18 years.  The accused and CG married in December 2000 and the family moved into a house together in Kewdale.  The State submits that the accused personal life had then become secure, stable and apparently fulfilling.

   (p)Since meeting CG in April 1997 it is not alleged that the accused committed any further offences during the following 19 and a half years up until the time of his arrest on 22 December 2016.

2. The State says that it is apparent that the accused was living with emotional turmoil in the period from late 1994 until he met CG in April 1997.  During that period he endured certain circumstances and events which, it can be inferred, would have caused heightened emotional stress and volatility.  The State submits that the offences alleged in the indictment were committed proximate to some of those circumstances and events.  This is said to support an inference that the accused was, at the relevant times, motivated to attack women who were strangers to him.  That emotional turmoil is said to be 'the reason that nudges the will and prods the mind to indulge the criminal intent' or 'the feeling that prompts the operation of the will'.[19]  The circumstances of the accused experiencing such turmoil is said to excite a violent, sexual or murderous impulse or emotion and the evidence that establishes the presence of that emotional turmoil is accordingly said to be relevant and admissible in proof of motive.  It is said to be explanatory of the occurrence of the offences and their commission by the accused.  The State submits that not only does the emotional upset evidence tend to explain why the accused committed the offences and when it was that he did so but it also explains why the offending stopped when it did.  The evidence is also said to be relevant to rebut any assertion by the accused that he had no motive to commit these offences.

   [19] Benton, 1056.

3. The State accepts that it is well established that motive is never, of itself, sufficient to establish guilt of an offence.  It is only a strand in the cable that comprises the circumstantial case.  It is said to be relevant because it strengthens the probability that the accused was the assailant in these offences.  In the present case it is relied upon by the State as a factor which if made out would support the case but if not made out would be neutral.  The State says that proof of motive in an entirely circumstantial case is not to be considered separately from the rest of the evidence.  Further the motive to commit a crime does not have to be either reasonable or sufficient to explain the conduct.  In the State's submission the only question is whether the evidence is sufficiently relevant in a wholly circumstantial case for the trier of fact to determine, in conjunction with all other relevant evidence, whether or not there was a motive in fact and if so, whether it influenced the conduct of the accused.

4. The State says that there is no rule of law that requires motive on the part of an accused to attach or relate to a particular victim.  The State does not allege that the accused's motive to abduct and/or murder arose with respect to the particular victims but rather that the evidence goes to prove motive on the accused's part to attack a female stranger.

5. Finally, the State says that the emotional upset evidence is of minimal prejudice.  Whilst the Hollywood Hospital offence discloses prior violent offending on the part of the accused the conduct involved is considerably less serious than the allegations the subject of the indictment.  In any event in a trial by judge alone the judge will not misuse the evidence.  The probative value of the evidence substantially outweighs any prejudice it could engender.

Emotional upset evidence ‑ defence submissions

1. The defence notes that the State's position in relation to the emotional upset evidence has changed over time.  Initially in submissions in support of the propensity evidence application the State asserted that the accused had a propensity for attacking vulnerable women at times when he was experiencing stress or turmoil in his intimate relationships.  The State did not maintain the argument that this evidence was admissible on a propensity basis but argued in the alternative that the evidence was relevant because it showed the timing of events and was a piece of circumstantial evidence admissible at common law.  This argument was made despite a concession that the State could not prove a causal link between an identified state of emotional upset and any offending.  That position has been subsequently refined such that it is now said that the evidence is relevant because it is evidence of motive.

2. The defence submits that there is no evidence capable of showing any emotional upset at the time of counts 1 and 2 in 1988, counts 3 ‑ 5 in 1995 or count 8 in early 1997.  This is said to be relevant because it undermines the prosecution argument that there is a link between emotional distress and offending.  Further, to the extent that there is evidence relevant to emotional upset at the time of counts 6 and 7, there is no causal link shown between that emotional state and the alleged offences.

3. The defence says that the first and essential step in the State's argument is that the evidence it seeks to rely upon is capable of showing that the accused was in a state of emotional upset at the time that the offences the subject of counts 6 ‑ 8 were committed, not merely that those offences were committed proximate to those events.  The defence says that unless the evidence is capable of showing that the accused was in that state at the time of the offences, or any of them, then the State argument fails at this first step.  The next step is that the State has to show that the evidence is capable of rationally contributing to the proof of the existence of a fact in issue.  The only relevant issue in relation to counts 6 ‑ 8 is whether the accused was the offender.  The defence notes that this is not a case where evidence of motive is relevant to the question of whether violence was intentional.  The only work the emotional upset evidence could be called upon to do in relation to these counts is in going to prove that the accused was the offender.  It is only if the emotional upset evidence is capable of making it more probable that the accused committed the offences alleged that it can be admissible.

4. The defence accept that evidence establishing that a person might have a motive to commit a crime can be rationally probative on the question of whether they did commit that crime.  However this is only so if the motive said to exist can rationally affect the question of whether the person said to have the motive is the offender.

5. As to the factual assertions relied upon by the State and referred to above at paragraph 77, the defence submits that even accepting that the evidence has to be taken at its highest from the State's perspective, many of these assertions cannot be established.  The defence also notes that the evidence on which the State seeks to rely has continued to change since submissions were first filed on this issue.  In particular the evidence of a key prosecution witness on this issue, EB, has continued to change.  Further the State has continued to adjust the evidence that it relies on.

6. The defence position in summary is:

   (a)even at its highest the evidence the State relies on is incapable of establishing that the accused was in a state of emotional upset at the time of counts 3 ‑ 5 or count 8, particularly a state of emotional upset of a sort similar to that which the State asserts motivated (wholly or in part) the Hollywood Hospital offence;

   (b)it is accepted that the evidence is capable of showing that such a state might have existed at the time of counts 6 and 7, although such evidence is only capable of doing so by inference; and

   (c)however, even in relation to counts 6 and 7, the evidence is incapable of allowing the court as fact finder in this case to take the second step ‑ namely of inferring that the accused's state of emotional upset made it more likely that he would commit the offences the subject of counts 6 or 7.

7. The State claims that the offences were committed in the period between late 1994 and April 1997 when the accused was under emotional stress and instability due to the breakdown of his marriage with EB, which included her infidelity.  The defence say that the evidence does not justify this characterisation, particularly insofar as it suggests a continuing and essentially unchanging state of affairs.  Estimates of when the affair between EB and DF began vary, but EB's account of how it began is when the accused began to show her less attention while spending more time on his computer so that she eventually looked elsewhere.  The defence says this is not evidence of emotional distress and is certainly not evidence of an emotional state comparable to that which acutely existed at the time of the Hollywood Hospital offence.  Moreover there is no evidence that the accused was aware that an affair had begun as at 12 February 1995, and the accused's invitation to DF to share a house with him and his wife directly contradicts that contention.  As a consequence the defence submits that neither of the necessary steps are available in relation to counts 3 ‑ 5.  The defence says that in essence the State's argument is that because the accused had started ignoring his wife and playing with his computer all the time, and that she had started seeing someone else without his knowledge, he is more likely to have decided to stalk, abduct and rape a stranger in an apparently planned and premeditated way.  The emotional upset evidence, it is submitted, is not capable of rationally affecting the likelihood that the accused committed counts 3 ‑ 5 either on its own or when regard is had to the whole of the evidence.[20]

   [20] This is relevant notwithstanding pleas of guilty to counts 1 ‑ 5, insofar as there is evidence which supports or undermines the existence of similar motive in respect of those offences.

8. The defence submits that the same can be said in relation to count 8.  By the time this offence occurred the accused's marriage to EB was over.  The accused had arranged with EB to sell the former matrimonial home and a sale contract was signed in early March 1997.  After the breakdown of his marriage to EB the evidence showed that the accused had one largely platonic social relationship with CH and then a casual sexual relationship with KM.  In these circumstances the defence submits that the signing of the contract for sale could not properly be characterised as an unsettling event.  In particular it is not an event of a sort that might act as a trigger for the commission, some 12 days later, of the apparently premeditated abduction and murder of Ciara Glennon.  The defence submits that this evidence cannot rationally contribute to the proof of count 8.

9. As to count 6 the State's submissions focus on the invitation by the accused to EB to attend fireworks with him and her refusal.  The defence submits that contrary to the State's suggestion that this is an event likely to have caused the accused to be emotionally upset, there is nothing in EB's statement to suggest that he was upset and, indeed, she says that he stayed for dinner with her and her parents.  It is accepted that this evidence is relevant to the question of the accused's opportunity to commit count 6 but it is submitted that it cannot satisfy the two conditions necessary for it to be admissible as evidence of motive.

10. As to count 7 it is accepted that the evidence is capable of showing that EB told the accused of her pregnancy shortly before Jane Rimmer disappeared in the early hours of 9 June 1996.  It is also accepted that the evidence is capable of supporting an inference that the accused was relevantly 'emotionally upset' and thus the first step in the reasoning process that the State seeks to invoke can be taken.  However it is submitted that the second step cannot be satisfied.  The defence says that this is not a case where a prevailing state of mind of the accused goes directly to the proof of the elements of the offences charged, nor is it a case where the accused is charged with the murder of an intimate partner where evidence of the nature of the relationship between the accused and the deceased is relevant.  The defence says that although the State disclaims reliance on tendency reasoning, when its argument is properly analysed that is what it is seeking to invoke.  That is to say, that because on a previous occasion the accused was prompted to act by the existence of a particular emotional state, therefore on a later occasion when there was evidence capable of showing the existence of such an emotional state or a similar emotional state it is more likely that he acted in the same way again.

11. As to the suggestion that the evidence is admissible to rebut any suggestion that the accused cannot have been the offender in counts 6 ‑ 8 because no offences were committed after 14 March 1997, the defence will make no such argument.  It says that to do so would be to invite speculation and because the evidence of CG shows that her relationship with the accused was not free from emotional upset.  Further it says that there is a critical distinction between absence of proven or apparent motive on the one hand and proven absence of motive on the other.

12. The defence submits that the emotional upset argument should not be allowed to be made.  There is said to be no direct evidence capable of meaningfully measuring the nature or severity of the accused's state of emotional upset (if any) at any relevant time.  Nor can any causal connection be reliably made between how the accused was feeling and how he acted.  Even in relation to the Hollywood Hospital offence a connection between the accused's state of mind and the commission of the offence can only be guessed at.  The attempt to invoke this process of reasoning is, in truth, an invitation to speculate, which the court should not allow.

Emotional upset evidence ‑ relevant law

1. There can be no doubt that evidence of motive on the part of an accused person is relevant and admissible.  Whilst evidence of motive alone cannot establish guilt, the existence of motive may add strength to a circumstantial case.  In Mutual Life Insurance Co of New York v Moss, Griffith CJ (with whom Barton and Higgins JJ agreed) said:[21]

   Evidence of motive is of itself, of course in the nature of circumstantial evidence as to the main question in issue. In considering the conduct of a man, regard is had by Judges and juries to the ordinary conduct of human affairs. When a man does an extraordinary or a wicked thing, there is probably some cause inducing or impelling him to do so, and the more heinous the act is the more important becomes the question of motive. When, therefore, the question for consideration is whether such an act is intentional or not, it is of the highest importance to consider whether the person in question, in the circumstances in which he was placed, had any inducement to form such an intention. On charges of murder sometimes the question is whether or not the accused caused the death, and sometimes whether, if he caused it, he did so intentionally or accidentally. The existence of a motive may tend to show either that the person in question did the act simpliciter, or that he did it intentionally. Such evidence is given on the subsidiary question of probability; and in cases depending on circumstantial evidence the question of probability may be most important.

   [21] Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311, 317.

1. Although motive is often spoken of in terms of a desire for a benefit or advantage, the concept can also encompass an emotional state that impels or drives a certain action.  In R v Heath[22] Cooper J said:

   Human experience shows that there are some common inducements to crime.  In Wills' Principles of Circumstantial Evidence, (7^th ed), at 64 the learned authors make the following observation:

   'The common inducements to crime are, the desire of revenging some real or fancied wrong; of getting rid of a rival or an obnoxious connection; of escaping from the presence of pecuniary or other obligation or burden; of obtaining plunder or other coveted object, of preserving reputation, either that of general character or the conventional reputation of profession or sex; or a gratifying some other selfish or malignant passion'. 

   Whatever the inducement to act, it will either be sourced in an emotional response to external circumstances or a rational response (in the sense of a voluntary reasoned response as opposed to one that is reasonable and adequate) to those circumstances.  The differing source of the inducement is reflected in a difference of opinion in the cases and the writings as to the proper definition of 'motive' and the evidence relevantly admissible to prove its existence and its operation on the conduct of a person.

   [22] R v Heath [1991] 2 Qd R 182, 200.

2. That motive may be constituted by an impelling emotional state is supported by Wigmore on Evidence (revised edition, 1983) vol 1A, 1697 ‑ 1698 as cited in the R v Heath[23] and De Gruchy v R.  In R v Heath it was cited in the following terms:[24]

   It ought, therefore, to be clearly understood that the 'motive', in the correct sense, is the emotion that is supposed to have led to the act and that the external fact is merely the possible exciting cause of this 'motive' and not identical with the 'motive' itself; and the evidentiary question is not whether that external fact is admissible as a motive but whether it is admissible to show the probable existence of the emotion or 'motive'.

   …

   Conceiving an emotion, then, as a circumstance showing the probability of appropriate ensuing action, it is always relevant.  All the questions of relevancy, then, can be, and should be for simplicity's sake, resolved into questions of the relevancy of the evidence to show the emotion.  Thus, the relevancy of an intrigue by an alleged wife murderer with a paramour raises the question, not whether lust is a sufficient emotion for murder, but whether the intrigue was sufficient circumstance to excite a murderous impulse or emotion.

   [23] R v Heath [1991] 2 Qd R 182, 201 ‑ 202.

   [24] De Gruchy v R (2002) 211 CLR 85 at 98.

3. In De Gruchy v R Kirby J observed at 98:

   Distinguishing between the usually essential ingredient of a criminal intention and a person's desire, purpose or motive will sometimes be important [Mason, 'Intention in the Law of Murder', in Naffine, Owens & Williams, Intention in Law and Philosophy (2001) 107, at pp 113 ‑ 117].  But, as such, motive is rarely, if ever, an element of a criminal offence [cf Cane, 'Mens Rea in Tort Law', in Naffine, Owen & Williams, Intention in Law and Philosophy (2001) 129, at pp 136 ‑ 139].  Motive must not, therefore, be confused with intention. Motive may be 'the reason that nudges the will and prods the mind to indulge the criminal intent' [United States v Benton (1981) 637 F 2d 1052 at 1056]. It may be the feeling that prompts the operation of the will, the ulterior object of the person willing. It generally has two evidential aspects. These will be the emotion that is supposed to have led to the act and the external fact that is the possible exciting cause of such emotion, but not identical with it [Wigmore on Evidence (revised edition, 1983) vol 1A 1696 ‑ 1697].

   Such analysis of motives and intentions assumes the capacity to dissect the contributing forces of human will and human action in the precise ways described. Whether this is physiologically or psychologically sound, or philosophically satisfying, are not questions that judges or jurors generally have the time or inclination to ponder, still less answer.

4. In the R v Baden‑Clay there was a suggestion that motive was confined to meaning the object or purpose that a person wants or hopes to achieve by a contemplated act.  This meaning was attributed to a passage in Glanville Williams, Criminal Law: The General Part (2^nd edition, 1961), 48.  The High Court rejected this argument and said:

   As to the respondent's reliance upon Glanville Williams' discussion of the concept of motive, it should be noted that Glanville Williams himself considered that the difference between the two senses in which he described the concept was 'merely terminological' [Williams 1961, 48 fn 1].  This terminological difference should not be allowed to obscure the undeniable relevance to the task of the jury of evidence of 'the relations of the murdered [person] to his [or her] assailant, so far as they may reasonably be treated as explanatory of the conduct of the accused as charged in the indictment' [R v Bond [1906] 2 KB 389 at 401, cited with approval in Wilson v The Queen (1970) 123 CLR 334 at 343 ‑ 344 by Menzies J, with whom McTiernan and Walsh JJ agreed. See also Mutual Life Insurance Co of New York v Moss (1906) 4 CLR 311 at 317, 323; R v Plomp [1962] Qd R 161 at 175, 185 ‑ 186; R v Lewis [1979] 2 SCR 821 at 831; Rv Heath [1991] 2 Qd R 182 at 202 ‑ 203; Richardson v The Queen [2013] NSWCCA 218 at [56]].

5. Evidence of motive may be relevant to the question of whether the accused did the act alleged.  It is not confined to being used only where the intent with which an act is done is in issue.  In Plomp v The Queen (1963) 110 CLR 234 Dixon CJ (with whom Kitto and Taylor JJ agreed) rejected a suggestion that evidence of motive could not be taken into account until there was some other evidence to show that the accused's actions were responsible for the death of the victim. His honour said:[25]

   It is objected that Plomp's motives cannot be taken into account until it is shown by evidence that in some physical way his actions were responsible for his wife's death. There is nothing, it is said, to show that anything he physically did impeded her emerging from the surf or recovering her equilibrium. Until that is shown, evidence of motive cannot be used, so it is said, to prove guilt. There is, in my opinion, no legal doctrine to that effect. All the circumstances of the case must be weighed in judging whether there is evidence upon which a jury may reasonably be satisfied beyond reasonable doubt of the commission of the crime charged. There may be many cases where it is extremely dangerous to rely heavily on the existence of a motive, where an unexplained death or disappearance of a person is not otherwise proved to be attributable to the accused; but all such considerations must be dealt with on the facts of the particular case. I cannot think, however, that in a case where the prosecution is based on circumstantial evidence any part of the circumstances can be put on one side as relating to motive only and therefore not to be weighed as part of the proofs of what was done. In this case the word 'motive' was used during the argument and no doubt at the trial to cover much material. But it is not clear to me whether some of that material did not go somewhat further than what is ordinarily comprised under that word. In the course of the summing up the learned judge who presided at the trial said to the jury: 'You must remember that before you can use evidence of motive, there must be a sufficiency in the evidence to establish to you that this death was not an accidental death, to establish to you that he did something in order to get his wife into the water, and having got her there, he wilfully murdered her.' This appears to me to go too far in the accused's favour. I think that if the whole of the evidence is read and what the accused said and did both before and after his wife's drowning is considered with all the circumstances of her drowning a reasonably strong circumstantial case is made against him, but I cannot think that this is so if you omitted from it all the detailed circumstances of his dealings with the other woman.

   [25] at 242 ‑ 243.

6. In those cases (like Plomp and Heath) where the motive is said to be strong, impelling emotions, those emotions related to the victim.  It was in this way that the emotions of the accused tended to explain what might otherwise have seemed to be an inexplicable (and therefore unlikely) homicidal act.  Such evidence has been viewed as relevant because it casts light on the nature of the relationship between the accused and the victim. 

Emotional upset evidence ‑ conclusions

1. There is no general rule of human behaviour that the suffering of emotional upset, distress or trauma, to any particular degree, will result in homicidal violence.  Still less can it be said that emotional upset arising from personal relationships makes it more likely that a man will violently attack a female stranger with a view to sexually assaulting her.  In order for such a connection to be made there must be some evidence to show that the accused is likely to respond to emotional upset in his life in this way.  In this regard the Hollywood Hospital reports evidence is critical.  In my view without that evidence it would be very difficult, if not impossible, for the State to maintain that any of the emotional upset evidence has any relevance.  It is only because on a known and proven occasion of sexual violence the accused attributed his conduct to emotional trauma arising from his personal relationship that such a connection can be argued as being relevant on other occasions.

2. The present case differs from those (like Plomp and Heath) where evidence of an emotional state has been relied on as the motivating cause of a killing.  In those cases feelings of anger, hatred or frustration were focussed on the victim and served to explain why the accused may have wanted to kill that person.  Here it is not alleged that the accused had any relationship with any of the victims or that any emotions he felt were caused by, or focussed on, them.  The suggested relationship between the emotional state and the alleged offences is indirect.  In my view this means that that relationship must be clearly proved in order to establish relevance, as contrasted with cases like those I referred to earlier where the connection between animosity to a spouse and the killing of that spouse is obvious.

3. The term 'emotional upset' as used in these proceedings is a vague and general term.  It may cover a wide range of emotions from annoyance and dissatisfaction to acute anger and distress.  It cannot be that any degree of emotional upset would be sufficient to establish a motive on the part of the accused.  Emotional intensity is by its nature a difficult thing to calibrate or measure.  In this case it is only by reference to what the accused said in the Hollywood Hospital reports that a more precise idea of the nature of the emotion that motivated him on that occasion can be understood.  According to those reports the accused said that there had been a recent revelation by EB of earlier marital infidelity on her part and there had been an argument the evening before.  There is reference to this argument in the statement of EB and, on her account, it appears to have been an intense and upsetting experience for them both.  There would, therefore, appear to be two components to this emotional upset, the revelation of infidelity which had occurred sometime in the preceding week and the more acute factor of the argument.  Assuming both of these components are necessary it is important to consider whether there were acute emotional events close in time to each of the alleged offences.

4. As to count 6, the rejection of the invitation to attend the fireworks event seen in isolation would appear to be a relatively minor incident.  That characterisation could be supported by the fact that there was no apparent display of emotion by the accused and that he stayed with EB and her parents for dinner.  However this incident occurred very soon after EB and the accused separated and, therefore, it is possible that the refusal assumed greater importance in this context.

5. As to count 7, the news that EB was pregnant was again met without any overt show of emotion on the part of the accused.  However in a context where they remained married and had been separated for only a few months this is the type of news that may well have caused the accused to be acutely upset.

6. As to count 8, by the time the contract for the sale of the matrimonial home came to be signed the accused and EB had been separated for nearly 12 months.  The likelihood that the signing of this contract would have caused any significant emotional distress to the accused seems to be less likely.  This event also occurred 12 days prior to the abduction of Ms Glennon, which makes any link between those events more difficult to draw.

7. It can be seen from what has been said that the evidence as to the acute events is also indirect.  That is, it is not evidence that the accused displayed any distress or emotional upset (to the contrary), rather it is evidence that events occurred that, by their nature, are said to be likely to have caused emotional upset of an intensity comparable to that which existed at the time of the Hollywood Hospital incident.  This requires a process of inferential reasoning that takes into account the nature of the acute events, the character of the accused and the surrounding circumstances in order to determine the likely emotional response of the accused.

8. In my view the Hollywood Hospital evidence is capable of supporting an inference that the accused may respond to acute emotional upset in his life by attacking a female stranger with a sexual intent.  However, there is only one proven instance of this, there being no evidence of acute emotional trauma in relation to the events that are the subject of counts 1 ‑ 5.  The differences between the Hollywood Hospital incident and counts 6, 7 and 8 need to be taken into account.  They include, that the Hollywood Hospital incident occurred in the daytime, in a workplace, did not involve abduction and that the accused stopped voluntarily without harming the victim.  As regards the sexual motivation, whilst there is no direct evidence of such a motivation in respect of counts 6, 7 and 8 it can be reasonably inferred from the known facts.  There is also the fact that the Hollywood Hospital offence would seem to have been an opportunistic attack, consistent with it arising from an irrational emotional response to personal trauma.  But the prosecution case in respect of counts 6, 7 and 8 is that they were planned and followed a period of prowling behaviour.  The State says this is not inconsistent and that the acute emotional trauma is relevant to the timing of the offences.  Nonetheless, there is possible inconsistency in these scenarios.

9. I accept that evidence of motive, including an emotional state which impels conduct of a certain type, is admissible.  Establishing relevance may, however, be more difficult where the emotional state does not relate to any particular victim and the power of the motive to cause an act may depend on the intensity of the emotion.  Whether the evidence in this case satisfies those requirements is difficult to finally determine at this stage.  The relevant witnesses have provided additional information in more recent times and some of the evidence is expressed in terms of impressions or conclusions that may or may not have a proper basis.  Furthermore, the connection between the emotional state and the offences is indirect and requires the drawing of inferences.  Those inferences need to be considered in light of the evidence as a whole (including evidence which is not the subject of this ruling).  Whilst it is important to ensure that only relevant evidence is taken into account, it is also important that no relevant evidence is too readily excluded.

10. In these circumstances the appropriate course, in my view, is to allow the evidence to be led on a provisional basis.  That is, to allow the evidence to be adduced with a view to making a ruling as to its relevance later in the trial.  It is possible to adopt this course because this is a trial by judge alone.  In the event that I later rule that the evidence is not relevant I will ensure that it is not taken into account in determining whether the charges are proved.  That exercise will be reinforced by the requirement to prepare detailed written reasons.  I appreciate that this may impose a burden on the defence of having to prepare a defence case and to prepare the cross examination of witnesses on the basis of this evidence in circumstances where it may later be ruled to be irrelevant.  However any concern in that regard is ameliorated by the fact that significant portions of this evidence would be admissible in any event as being relevant to other issues, for example opportunity.  The defence concedes that this is so.  I would also ensure that any final ruling was made before the end of the prosecution case so that the accused knows with certainty what evidence he must meet before being called on to give the defence case.

11. In coming to this conclusion I do not mean to exclude the possibility that other objections to the evidence may be made.  Some of the evidence is potentially objectionable as being hearsay, speculation or opinion.  Such objections cannot be properly dealt with now as they will be affected by what the witnesses actually say in their testimony.  Those objections are better dealt with in the context of the trial.

12. In the event that relevance is established there will remain a question of whether the evidence should be excluded in the exercise of the court's discretion if its probative value is small and outweighed by its prejudicial effect.  To have probative value the evidence must be capable of materially contributing to the strength of the circumstantial case.  It may be that any prejudice arising from the evidence can be avoided by a judge sitting without a jury, but this does not necessarily mean that evidence with any degree of probative value, however small, must be admitted.  Although the State touched on this issue in its written submissions, it is a matter which was not considered in detail and should be deferred until a final ruling as to relevance is made.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.

KR
Associate to the Honourable Justice Hall

15 NOVEMBER 2019